Court number one at the Old Bailey was the setting last week for a conversation about the government’s plans to repeal the Human Rights Act and replace it with a British Bill of Rights, featuring as its star turn the former president of the Supreme Court. Lord Phillips, who was the court’s inaugural president when it replaced the Appellate Committee of the House of Lords as the final court of appeal for the UK in October 2009, began the discussion by saying he would be ‘shocked’ to see the Human Rights Act repealed before the EU referendum.

After his retirement from the bench in 2012, Phillips returned to the House of Lords – to which he was appointed in 1999 upon becoming a Law Lord – as a crossbench peer. As such, he will be entitled to vote on the prospective Bill of Rights, if and when such a bill is brought before Parliament. However, Phillips reminded the audience that, because of the Salisbury Convention – under which the House of Lords will not oppose government legislation promised in its election manifesto – he will not, ‘like it or not’, be in a position to reject the Bill of Rights.

A longstanding ‘promise’
The Conservative pledge to repeal the Human Rights Act and replace it with a ‘British’ Bill of Rights is a longstanding one: as I wrote for the Justice Gap almost 18 months ago, this promise was included in the party’s 2010 general election manifesto. Given that we are (still) yet to see a draft Bill of Rights, Phillips opted to be ‘judicial’ and said he does not ‘want to condemn the bill before it is published’. Nevertheless, he felt confident to infer from Conservative policy statements that the proposed bill ‘is not going to improve the human rights scene in the UK’.

Following the 2010 election, coalition with the Liberal Democrats resulted in compromise, with the government establishing a Commission on a Bill of Rights to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’.

The majority of the Commission concluded that there is ‘a strong argument in favour of a UK Bill of Rights on the basis that such a Bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights, and that it would provide no less protection than is contained in the current Human Rights Act’. The Commission’s terms of reference perhaps made it inevitable that any recommendations would be for ‘Human Rights Act plus’, rather than endorsement for any proposal to weaken the legal framework for the protection of human rights in the UK.

Judicial power vs ‘democratic override’
Before the Commission finished its work, one of its members resigned, asserting that it had been ‘hijacked by the Liberal Democrats and the grandees of the human rights culture’. The commissioner ‘was determined to see that Parliament had the ability to override decisions by the European Court of Human Rights’, and decided he could ‘no longer put up with the sneering, contemptuous attitude of the human rights brigade towards the concept of Parliamentary sovereignty’.

Who was this commissioner, the sole non-lawyer appointed by the government? Dr Michael Pinto-Duschinsky, who joined Lord Phillips on the panel at the Old Bailey.

Dr Pinto-Duschinsky’s address was less combative than might be expected from the forceful comments he made on resigning from the Commission. Describing the British Bill of Rights as ‘the Human Rights Act with a different title’ – a superficial re-labelling of rights in response to a perceived political problem – he dismissed the debate as ‘an excuse for turning away from the real issues’. For Pinto-Duschinsky, the principal underlying issue is ‘not so much about the rights themselves but the structural power as to which institutions have the final say’.

In the occasional cases where there is ‘a real clash between the democratically elected branch and the judicial branch’, Pinto-Duschinsky favours a ‘democratic override’, reserved for the most exceptional cases, to enable the will of Parliament to triumph over the courts. To respond to the argument that decisions by judges are inherently anti-democratic, another speaker at the Old Bailey, Angela Patrick from JUSTICE, summoned the words of Lord Bingham:

‘It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true… that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.’

Patrick echoed the acknowledgement by Lord Phillips that, until the Bill of Rights is published, we are ‘debating in a vacuum’, but it is clear that the purpose of any replacement for the Human Rights Act introduced by the present government will be ‘fewer rights for fewer people’. She also lamented the prevailing dialogue that human rights are for ‘them’ and not ‘us’; that the Human Rights Act ‘has protected classes of people who are inconvenient or who ministers or the press might consider undeserving’.

Protecting unpopular views
The final speaker, Aileen McColgan, joined Patrick in contextualising the Bill of Rights as a response to ‘Daily Mail driven hostility to the Human Rights Act because Johnny Foreigner is telling us what to do, because it gives rights to criminals and terrorists and it trumps our parliamentary system’. McColgan emphasised – as other lawyers have – that repealing the Human Rights Act ‘will be extraordinarily difficult constitutionally for a number of reasons’, including Scottish devolution and the Good Friday agreement between the UK and Ireland.

As Patrick pointed out, the Human Rights Act has helped many ‘ordinary’ people secure justice: people like Jan Sutton, Steven Neary and the family of Joanna Michael. The Lord Chancellor has spoken of applying a ‘British gloss’ to the rights set out in the European Convention, but for Patrick this threatens to ‘undermine the principle of universality’ which is at the heart of human rights, and represents a worrying move towards ‘retrenchment from international standards’ which has already been seized upon by less progressive regimes seeking to disregard international law.

Patrick was surely right when she concluded that ‘any human rights instrument worth its salt will make governments uncomfortable – otherwise, what’s the point in having it?’ A crucial function of human rights law is to protect unpopular or minority groups from the potential tyranny of majoritarian democracy; that is why the ‘final word’ in individual cases must be by an independent judiciary, rather than by politicians beholden to the popular vote for re-election.

The government’s consultation on a Bill of Rights has been delayed repeatedly. Perhaps the political, legal and constitutional obstacles to repeal of the Human Rights Act will indeed prove insurmountable. Asked for his view, Lord Phillips predicted that the Bill of Rights will ‘fade away following the EU referendum because, whatever the result is, it will make this particular debate seem insignificant’. Those who oppose the ‘fewer rights for fewer people’ framework evidently contemplated by the government will hope he is right.